Riara Law School students discuss the international law perspective of the Law on Extraditions

2.  You are Counsels in DPPs office, and are reviewing
Kenya’s practice on Extradition, in order to bring it
to current international legal standards, and to
inform future practice at the DPP’s office. You are
to make the presentation to the Quarterly meeting
of Counsels from the AGs and DPPs office (with
officers from Ministry of Foreign Affairs invited to this
one).
 Develop a presentation canvassing: The
international practice in regard to state’s surrender
of criminals, schemes; A treatment of Kenya’s
practice including policy and legal framework;
Illustrative examples and case law; and make
Proposals for change if you find any desirable to
render it more in accord with international law and
practice.

4.  Official process
 Regulated by treaties between countries
 One State surrenders a suspected or convicted
criminal to another
 Who has fled to the requested State’s territory
 Done to prevent evasion of justice

5.  Treaty laws are bilateral
 So there is no obligation on a State
 Where it is compelled by law, known as
Rendition
 This is surrender or handing over of
persons/property from one jurisdiction to
another

6.  The ‘Double Criminality’ Principle
› Crime should be committed in both jurisdictions
concerned
 The ‘Specialty’ Principle
› Person being surrendered can only be tried and
punished for the offence for which extradition
was sought

7.  Offences of a political nature have been
excluded
 A person must be prosecuted or
persecuted for a crime committed, not for
his political opinion
 Therefore, reasons for extradition must be
clearly stated in the request

8.  However, terrorist activities are not covered by this
exception.
 Art 1 of the European Convention on the Suppression of
Terrorism1977 provides a list of offences not regarded as
political offences or inspired by political motives
› Attack against the life of internationally protected persons,
including diplomats
› Kidnapping
› Using bombs, grenades and other ammunition

9.  Many States do not allow nationals to be extradited
 Usually, in circumstances where State has wide
powers to prosecute them for offences committed
abroad
 Human Rights should also be noted – for instance,
extradition to a State which would torture the person
may violate (relevant) HR instruments

10.  Each member State must comply with a request form
from the court or prosecutor of another State for the
arrest warrant
 The warrant for the accused must be for an offence
carrying a 12 month minimum penalty
 Need only contain a description of circumstances of
the offence
 Judicial authorities decide on the request.

11.  Extraditable offences
› Punishable under the laws of both States concerned
by imprisonment or deprivation of liberty
› See s.4 Extradition (Commonwealth Countries) Act
 Non-extraditable offences
› Where laws of both countries are not the same; or
› No established treaty of extradition between both
countries

12. KENYAN
CONTEXT
CAP 76

13.  Criminal Homicide and Similar Offences
 Injury to Persons Not Amounting to
Homicide
 Abduction, Rape and Similar Offences
 Narcotics and Dangerous Drug
 Damage to Property
 Falsification of Currency and Similar
Offences
 Forgery and Similar Offences

14.  Misappropriation, Fraud and Similar
Offences
 Piracy and Similar Offences
 Slave Dealings
 Offences against the Slave Trade Act
1873, or otherwise in connexion with the
slave trade, committed on the high seas
or on land, or
 partly on the high seas and partly on
land.

15.  General
 Counselling, procuring, aiding and
abetting, or being an accessory before
or after the fact to any of the foregoing.
 Organized Criminal Group Offences
 Any offence that constitutes an offence
of money laundering under the
Proceeds of Crime Anti-Money
Laundering Act, 2009.

16.  Section 3 – states that if an agreement
exists between countries other than
common wealth countries, with respect
to the surrender to that country of any
fugitive criminal, the minister may, by
order published in the gazette, declare
that this part apply…to such conditions,
exceptions and qualifications as may be
specified in the order

17.  Section 5 – if a fugitive of any country is
arrested the country (Kenya) an
application is to be made to the Minister by
the consular officer or diplomatic
representative of that country.
 The minister may by an order by his hand,
after receiving a requisition, signify to a
magistrate that a requisition has been
made and require the magistrate to issue
his warrant of arrest and detention of the
fugitive criminal

18.  Section 8- (committal or discharge of
prisoner)
 Section 6 and 7 provide that if a criminal
fugitive is arrested, he shall be brought
before a court, and evidence is
presented (that shows that the crimes
are not section 16 crimes )in the hearing
of a case shall commit him to prison, but
otherwise shall order him discharged.

19.  Section 9
 -When a criminal fugitive is committed to
prison, the prisoner is to be informed that
they shall not be surrendered until the expiry
of 15 days and that they have a right to
apply for habeas corpus.
 -After which a minister may by warrant
under his hand order the fugitive criminal, if
not set at liberty on the decision of the
court, to be surrendered to such person as
is his opinion, duly authorized to receive the
fugitive criminal by the country from which
the requisition for the surrender proceed,
and the fugitive criminal shall be
surrendered accordingly.

20.  Section 10
 If a person has been committed to prison
and is not surrendered and conveyed
out Kenya within 2 months after the
committal, or if the directions of habeas
corpus are issued, after the directions,
any judge of the High Court may order
the criminal be discharged unless
sufficient cause of the contrary is given.

21.  Section 12
 It works where a warrant is issued to a
country where there is believe or
reasonable suspicion that this criminal is/
going to be/ going to go through.
 The warrant is endorsed by the
magistrate from that jurisdiction.

22.  The High Court sitting in this case has
ruled that Kenya courts do not have
jurisdiction to try persons for acts of
piracy committed in the High Seas.
 Until September, 2009 the Penal Code
provided for the offence of piracy jus
gentium.

23.  The section was repealed by the Merchant
Shipping Act, 2009 without a saving clause.
The 2009 Act is not applicable to this case
since it came into force after the offences
were committed.
 The applicants were charged with the
offence of piracy contrary to section 69 (1)
as read with 69 (3) of the Penal Code. At
the close of the prosecution case, the court
put the applicants on their defense.

24.  During trial, the applicants objected that
the court did not have jurisdiction to try
them since the offence was committed
in high seas in the Gulf of Aden outside
the territory of Kenya.
 The court ruled that it had jurisdiction
and continued hearing the case.
 The High Court held that the alleged
offence of piracy jure gentium was not
committed in territorial waters within the
territorial waters within the territorial
jurisdiction of Kenya Courts.

26.  FACTS – A Mexican national had been
forcibly kidnapped and brought to the U.S
to stand trial for crimes in connection with
the kidnapping and murder of a U.S Drug
Enforcement Administration Special Agent
and his pilot.
 He moved to dismiss his indictment at the
trial claiming that his abduction constituted
outrageous government conduct, and that
the District Court lacked jurisdiction to try
him because he was abducted in violation
of the extradition treaty between the US
and Mexico.

27.  The District Court dismissed the
indictment on the ground that it violated
the Extradition Treaty, discharged him
and ordered his repatriation.
 The Court of Appeals affirmed the
decision of the District Court, finding that
the jurisdiction was improper, based on
the fact that the US had authorized the
abduction and the Mexican Government
had protested the Treaty violation.

28.  The Supreme Court reversed the Court of
Appeals decision.
 It held that a court in the US had
jurisdiction to try a Mexican national who
had been forcibly kidnapped and
brought to the US for violations of the
criminal law of the United States.

29.  It further held that a defendant may not
be prosecuted in violation of the terms
on an extradition treaty that requires that
he should be prosecuted for only those
offences for which he was extradited.
 However, when a treaty has not been
invoked, a court may properly exercise
jurisdiction even though the defendant’s
presence is procured by means of a
forcible abduction.

30.  It was stated “The question of how far his
forcible seizure in another country, and transfer
by violence, force, or fraud, to this country,
could be made available to resist trial in the
State court, for the offence now charged upon
him, is one which we do not feel called upon to
decide, for in that transaction we do not see
that the Constitution, or laws, or treaties, of the
United States guarantee him any protection.
There are authorities of the highest
respectability which hold that such forcible
abduction is no sufficient reason why the party
should not answer when brought within the
jurisdiction of the court which has the right to
try him for such an offence, and presents no
valid objection to this trial in such court.”

31.  The South African Court of Appeals allowed an
Appeal against the conviction of the appellant for
treason.
 The appellant, a member of the military wing of the
African National Congress who had fled South
Africa while under a restriction order, had been
abducted from his home in Mbabane, Swaziland,
by persons acting as agents of the South African
State and taken back to South Africa, where he
was handed over to police and detained in terms
of the security legislation.
 He was subsequently charged with treason in a
Circuit Local Division.

32.  The appellant had, prior to pleading,
applied for an order that the court
lacked jurisdiction to try the case as his
abduction was in breach of international
law and thus unlawful. The application
was dismissed and the trial continued.
He was convicted and sentenced to 20
years’ imprisonment. On appeal
against the dismissal of the application,
the South African Court of Appeals,
upheld the objection to the trial.

33.  The Court stated that according to Roman
Dutch law, as adapted to the local
circumstances of South Africa (Roman
Dutch Common Law), one of the limitations
to a court’s exercise of jurisdiction in
criminal cases is that even if an offence was
committed within the area of jurisdiction of
the court, a court had no jurisdiction to try a
person who was abducted from another
jurisdiction by agents of the State authority
exercising power in the area of the
jurisdiction of the court.

34.  It was stated “Several fundamental legal principles
are implicit in those rules (of the Roman Dutch law),
namely, the preservation and promotion of human
rights, good international relations, and the sound
administration of justice. The individual must be
protected against unlawful detention and against
abduction, the boundaries of jurisdiction must not be
violated, state sovereignty must be respected, the
legal process must be fair towards those who are
affected by it and the misuse of the legal process
must be avoided in order to protect and promote the
dignity and integrity of the administration of justice.
The state is also bound thereby. When the state itself
is a party to a case, as for example in criminal cases,
it must as it were come to court with ‘clean hands’.
When the state is itself involved in abduction over
territorial boundaries, as in the present case, its hands
are not clean(emphasis added). Rules such as those
mentioned are evidence of sound legal development
of high quality.”

35.  The appellant in this case was arraigned
in the High Court of Zimbabwe on a
charge of contravening section 50(1) of
the Law and Order (Maintenance) Act
(cap 65). He was convicted of terrorism.
He appealed against the conviction.

36.  The appellant was the leader of a group of
armed terrorists. The indictment alleged
that the appellant, acting in concert with
other persons and with intent to endanger
the maintenance of law and order in
Zimbabwe, attempted to commit an act of
terrorism or sabotage when he conspired
with others to forcibly effect the release
from the lawful custody of the Zimbabwe
certain South African agents detained on
the charges relating to their involvement in
acts of terrorism, sabotage or espionage,
and to remove them outside the borders of
Zimbabwe.

37.  It was further alleged that in pursuance of the
plan, he entered Zimbabwe on June 27, 1988
at Kazungula border post, and acted in a
manner that was likely to cause serious bodily
injury to or endanger the safety of any person
within Zimbabwe, and did cause such serious
bodily injury.
 In pursuance of the conspiracy, it was alleged,
the appellant entered Zimbabwe with a co-
conspirator. On being questioned by the
Zimbabwean Police and immigration officials,
he fled to Botswana.
 The other members of the group remained in
Zimbabwe and attempted by force to effect
the release of the South African agents, but
were thwarted by the Zimbabwe security
agencies

38.  At the time of his arrest, the appellant was a
resident of South Africa and a citizen of the
United Kingdom. He was arrested in
Botswana and remained in the custody of
the Botswana Police for 5 days. During that
period, he did not appear in court nor did
he have access to legal representation. He
was handed to the Zimbabwe Republic
Police on the 5th day.
 There was no extradition treaty between
Zimbabwe and Botswana. The government
of Zimbabwe did not make a request to the
Government of Botswana for the extradition
of the appellant from Botswana to
Zimbabwe.

39.  He was found guilty of the involvement in
the shooting of a security guard at the
ZISCO Airstrip at Kwe Kwe and deliberate
damage to the National Air Force's Bell
helicopter and sentenced to life
imprisonment with labor. One of the
issues on appeal was whether the High
Court had jurisdiction to try the appellant

40.  The court however distinguished the
circumstances under which the appellant
had been brought to Zimbabwe from the
case of State v. Ibrahim and noted the
following facts.
 The appellant in the Zimbabwe case was a
fugitive from Zimbabwe, who had entered
Botswana illegally in transgression of the
immigration laws.
 He was apprehended by members of the
Botswana defense force and handed over
to the Botswana police, who were aware
that the authorities in Zimbabwe were
anxious that he be returned to stand trial.

41.  The appellant was conveyed in the custody
of the Botswana police to the border
between the two countries and voluntarily
surrendered to the Zimbabwe Republic
police, who then promptly arrested him. The
agents of Zimbabwe did not use force or
deception to recover the appellant from
Botswana.
 The Court concluded that the failure by the
Botswana authorities to have recourse to
proper deportation procedures did not
constitute a bar to the High Court in
Zimbabwe exercising jurisdiction over him

42.  It was stated that “In my opinion it is essential that in
order to promote confidence in and respect for the
administration of justice and preserve the judicial
process from contamination, a court should decline to
compel an accused person to undergo a trial in
circumstances where his appearance before it has been
facilitated by an act of abduction undertaken by the
prosecuting state. (Emphasis ours).There is an inherent
objection to such a course both on grounds of public
policy pertaining to international ethical norms and
because it imperils and corrodes the peaceful co-
existence and mutual respect of sovereign nations. For
abduction is illegal under international law, provided the
abductor was not acting on his own initiative and without
authority or connivance of his government (sic). A
contrary view would amount to a declaration that the
end justifies the means, thereby encouraging states to
become law-breakers in order to secure the conviction
of a private individual”.

43.  The defendant was a Canadian citizen
named Helen Susan Schmidt, who along
with her son Charles Gress and his friend
Paul Hildebrand had kidnapped a
young girl in Cleveland, Ohio. Schmidt
claimed to believe the girl was her
granddaughter and that the girl's
biological mother kept her in a home ill
suited for a child.
 They were arrested in New York on 1982

44.  She was charged with kidnapping (a
federal offence in the United States) and
with child-stealing (an offence in Ohio).
That same year she was acquitted of
kidnapping, but she fled to Canada
before her state trial commenced. She
was captured in Ontario and was
prepared to be extradited.

45.  After the Supreme Court found it had
jurisdiction to review the case, it considered
whether extradition law was violated.
 Under extradition law, a hearing in Canada
would ascertain if there was sufficient
evidence of a crime that could be criminal
in Canada as well as in the other nation.
 It was decided that Schmidt "failed to
establish that the offence in Ohio is the
same offence as the offence under the
United States Code. The majority found that
the charge would be in accordance with
"traditional procedures" in Ohio.

46.  Wilfred Onyango and Patrick Ayisi Ingoi were wanted
by law enforcement agencies in Tanzania for
allegedly stealing money in excess of Tshs. 5 billion
from the National Bank of commerce at Moshi on
21st May 2004. Subsequent investigations led to
arrests of certain Tanzanian suspects inside Tanzania
and the two Kenya respondents concerned with the
instant ruling inside Kenya.
 **QUESTION ANSWERED IN THIS CASE - To what
degree should the magistrate's court be satisfied
before it can release an accused person alleged to
have committed an offence in a foreign country to
the law enforcement agencies of that country? **

47.  The magistrate had anchored her ruling
mainly on the grounds that the alleged
criminals were not guaranteed to
receive a fair hearing in Tanzania and
the supposition that subsidiary legislation
governing the extradition had not been
laid before the National Assembly after
publication.

48.  In pursuit of the judicial process for those
arrested, the Tanzanian Government
made a request for the extradition of the
Kenyan respondents. However after the
said discharge by the subordinate court
one of them ventured abroad and
ended up under arrest in Tanzania.

49.  Eventually, in an appellate court, the court
concurred that the mandate of the
Magistrate during the extradition hearing,
was to ascertain merely that a prima facie
link existed between the respondents and
the criminal incident; full ascertainment of
that linkage belonged to the arena of trial,
which would result in conviction or
acquittal.
 Although some witnesses had said they did
not see the suspects at the scene of the
event, the veracity of their statements was
something for trial in Tanzania to determine.

50.  The court noted that trial and the dispensation of justice, in
the first place, is the remit of the Courts, and not of
witnesses. Such witnesses are themselves subject to Court
procedures, and stand checked by the Court's exercise of
the contempt jurisdiction, in a proper case; and at the
very minimal level, the Court is bound to determine, during
the hearing, which witnesses have told the truth, from
those who may had lied.
 The fact that the Tanzanian Courts, shared one appellate
structure in the shape of the East African Court of Appeal,
have always been guided by the principles of common
law and equity which are the heritage of the common law
countries, as well as by constitutional and legal principles
associated with membership of the Commonwealth, the
court had no doubts that the trial procedures adopted in
the Tanzanian Courts would be the same mould as those
applicable in the Kenyan Courts.

51.  Accordingly the court ordered the each
of the suspects to be extradited to
United Republic of Tanzania, to be tried
in a criminal court, in accordance with
the laws of that country.

53.  To render Kenya’s laws on extradition to
be more in accord with international law
and practice, here are some proposals;

54.  There is an established but unofficial
cooperation between East Africa States
to exchange criminals without
compliance with extradition laws since
the establishment of the EAC in 1967.
 This has led to violation of the rights of
the citizens.

55.  Fairly recent extradition of 13 Kenyans to Uganda - Led
to the violation of International human rights law and
the Bill of Rights in The Constitution.
 The Ugandan government should have issued a warrant
of arrest and communicated its intention to Kenya (This
should have been done through the Ugandan High
Commission which would then inform the Attorney
General who would take the matter to the Magistrates’
Courts. It would be up to the Magistrate’s Court to
determine whether or not Kenya would accept or
decline the request by Uganda)
 The Kenyan court would then determine whether the
said Kenyans would stand a fair trial in Uganda and
whether the crimes preferred against them were in
accordance with the Extradition Act.
Example;

56.  Extradition cannot proceed where there is
failure to fulfill dual criminality, that is the
offence must be an offence in the country
of refuge and the requesting State, political
nature of the offence, where the suspect
may be subjected to ill treatment, for
example torture, where the requesting
State lacks jurisdictions to punish the
suspect and citizenship of alleged offender.
 States prefer to hold trials for their citizens
rather than extradite them to foreign
countries.

57.  The suspects illegally extradited to
Uganda can claim damages from the
Government of Kenya since there is a
glaring failure on the part of the
Government to accord with the law.

58.  One of the major problems in mutual
legal assistance world-wide is that the
requested State is often slow in replying,
and suspects must be freed due to
absence of evidence.

59.  The Palermo Convention is emphatic
about the importance of promptness,
and makes the point in two separate
provisions;

60.  Art. 8(13) of the Convention provides that, if
the central authority itself responds to the
request, it should ensure its speedy and
prompt execution. If the central authority
transmits the request on to, for example, the
competent court, the central authority is
required to encourage the speedy and
proper execution of the request.
 Art. 18(24) provides that the request is to be
executed “as soon as possible” and that
the requested State is to take “as full
account as possible of any deadlines
suggested by the requesting State Party
and for which reasons are given”.

61.  In order to enhance international
cooperation, in cases of extradition, it is
recommended to interpret the principle
of dual criminality in a flexible manner.

62.  To solve practical problems created by the
dual criminality requirement, the
harmonization of domestic criminal law is
recommended.
 This could be achieved through elaborating
and ratifying an international instrument.
 An example can be found in the Draft
United Nations Convention against
Transnational Organized Crime whose
Article 4 criminalizes laundering offences.
 By ratifying this Convention, State Parties will
adopt an identical definition of this offence
and its constituent elements

63.  Art. 18(18) of the Palermo Convention
adds the possibility of the hearing of
witnesses or experts by means of video
conference

64.  Even though this possibility requires an
initial investment in the necessary
equipment, video technology can
considerably facilitate the hearing of
witnesses and experts, since they would
no longer have to travel from one
country to another.
 It can also serve to protect witnesses or
experts, if they fear to reveal their
location or fear travelling to a court
hearing in the requesting State.